Partial transcript of Q&A with Sen. Dick Durbin (D-Ill.) on the “Drone Wars: The Constitutional and Counter-Terrorism Implications of Targeted Killing”. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights hearing was held on April 23, 2013:

Sen. Dick Durbin (D-Ill):
Gen. Cartwright, in a recent speech before the Chicago Council in Global Affairs, you noted your concerns about potential reaction to targeted strikes. In that speech, you said, “If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted.” Gen. Stanley McChrystal has also stated that the resentment created by American use of unmanned strikes is much greater than the average American appreciates. Mr. [Farea] Al-Muslimi’s testimony provides chilling example of how these strikes can undermine our efforts to win the hearts and minds of the very people we’re relying on to provide us with intelligence and ultimately be our allies. Are we treating short-term tactical success of killing individual targets for the long-term strategic failure by sowing widespread discontent and anger?

Gen. James Cartwright, United States Marine Corp (Ret.):
Senator, I can’t talk to specific operations but I am worried that we have lost the moral high ground for much of the reason that the witnesses have talked about. And that – some element of transparency in process, in decision-making, in the understanding not just of those who actually make decisions but of the people of this country and the people of the countries that we are working in, is going to be essential to finding our way back to that moral high ground. I believe that if people understand what the options are and what the choices are and that they are reviewed and they are basically, as we’ve given in our judicial system an adversarial way, looked at with a very jaundiced eye about whether we want to proceed or not to proceed, that we can move in a direction that’s far better than where we are today. But I believe that in several areas around the world, the current drone policies have left us in a position where we are engendering more problems than we’re solving.

Sen. Dick Durbin (D-Ill):
But wouldn’t you also, I’m sure, acknowledge that because of the classified nature of information that is being used to target and protecting the sources and methods which we’re using to find that information make transparency, if not challenging, impossible?

Gen. James Cartwright, United States Marine Corp (Ret.):
I would say challenging but not impossible. In other words, it is not necessary to provide the secret sauce to provide an understanding of why you are doing what you’re doing, how you’re making the decisions, and why they are necessary and that you’ve reviewed alternative choices in that decision process. I think that’s the important part to get out. I don’t disagree that, again, as I said in my testimony, that the policy that we’re following in the global war on terrorism is a policy that I support. But it’s the means and the methods here that I think we have to take a look at and seriously reflect on.

Sen. Dick Durbin (D-Ill):
Professor Brooks, I was just looking down at the panel to see who might have been here in 2001 to cast the vote on the authorization for the use of military force. I can remember there were two votes. One relative to the invasion of Iraq and 23 of us voted in the negative. And then the second vote, which we considered to be the direct answer to 9/11 for the invasion of Afghanistan, the direct assault on Al Qaeda, virtually all members of the Senate voted in favor of that. I believe all of them did if I’m not mistaken.

At the time, though, I don’t think there’s a single Senator who would say that they envisioned 12 years later that we would be ending the longest war in our history and that we had created an authorization for an ongoing war-like effort against Al Qaeda operatives and their associates.

So I guess my question to you is whether or not the AUMF – the Authorization for Use of Military Force – is adequate to the task of protecting America when we are still menaced and terrorized by those who would do us evil and whether or not there needs to be a revisit of that AUMF to determine whether it should be stronger or more specific?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Sen. Durbin, I’d be inclined to urge Congress to repeal the 2001 AUMF. I think that the President already has ample power as the commander-in-chief and as the chief executive of the United States to use military force when it is necessary to protect the United States from an imminent threat – an imminent and grave threat. But I would emphasize the words imminent and grave.

I think that in the absence of an Authorization for Use of Military Force, we would very likely see the executive branch perceive itself as constrained to do a more careful analysis of the importance of using military force, particularly in context where it’s a targeted killing in a foreign country which raises sovereignty issues among other things.

I share my colleagues’ view that there is nothing inherently wrong about the use of targeted killing as a counter-terrorism tool or in the context of armed conflicts but I do think that we have gotten well beyond as you suggest what the drafter of the AUMF and those who voted for it could ever have imagined as we have stretched it from Al Qaeda and from the actual language of the authorization which focused very squarely on those with responsibility in some way for 9/11 and on preventing future attacks such as that on the United States. We’ve begun to shift, as my colleagues have said, to those as you might say are further and further down the terrorist food chain – not so much senior operatives but lower-level militants and suspected militants. We’ve also shifted to focusing on organizations that it’s not that clear would fit that AUMF definition such as Somalia and Al-Shabaab in terms of either any link to the 9/11 attacks or in terms of any capability, capacity and inclination to focus on the United States.

Sen. Dick Durbin (D-Ill):
Well, I guess what I’m trying to get at here is this: I think that the definition of our enemy in the AUMF as Al Qaeda and associates can certainly be challenged today in terms of terrorism threats to the United States. I think some have gone far afield from the original Al Qaeda threat but still are realistic threats. So the definition of our enemy or enemy combatant would have to be carefully considered in the context.

But secondly, I would think we now are challenged to define the battlefield in where we can engage in targeted killing and what it takes to authorize us to go into Somalia, Yemen, Pakistan and Afghanistan or nations in Africa. Where is that battlefield? It seems like it can change almost on a daily basis and still be a threat to the United States.

I would say having been through this debate in the House and the Senate over the authority and responsibility of Congress to declare war on behalf of the American people that I don’t think our founding fathers in their wisdom could have envisioned quite what we’re facing today in trying to keep this country safe.

…

Sen. Dick Durbin (D-Ill):
Mr. Muslimi, do the people of Yemen know that we are there with the approval of the government of Yemen?

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
It’s very hard to speak whether people know or don’t know. But whether the government approve or doesn’t approve, it’s outside the big fancy walls of the capital, bringing a lot of problems, a lot of blowbacks. It’s not an issue of whether the government approves it or not, it’s not an issue of sovereignty, it’s as much as this on the ground it doesn’t take a rocket scientist to look at it have been a problem I think more than it has any goods.

Sen. Dick Durbin (D-Ill):
Before the drones, was AQAP viewed as a positive force in Yemen or a negative force?

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
Every Yemeni I have spoke to I have never met anyone who looks to AQAP as a positive entity ever.

Sen. Dick Durbin (D-Ill):
Thank you. Gen. Cartwright, we have a divided responsibility when it comes to drones – forgive me, Colonel, I’m going to continue to use that reference – between the CIA and the military JSOC [Joint Special Operations Command]. Aside from the intramural conversation we might have about two different agencies, can you give me your opinion as to whether this is a good thing, a necessary thing, or whether it should be continued?

Gen. James Cartwright, United States Marine Corp (Ret.):
And I think Col. McSally will jump in on this too but my experience whether it be drones or other types of weapon systems, when you ask the military to conduct operations that are non-military, we generally have trouble because we train our people to do military operations. So if you ask them to patrol the border, people oftentimes get killed that shouldn’t have been shot. So if we’re going to have the military participate in these types of operations for an extended period of time – more than just a one-off type mission, then we need to go back to some of the practices we probably had in the past associated with reconnaissance where we have specific units designated and equipped and trained and recruited to do that kind of operation and fund it. And if that’s what we’re going to do, then that is what I would recommend. In other words, if you would like to have just one Air Force rather than two or three for the country for logistics reasons, for training reasons, et cetera, then it needs to be an Air Force that’s capable of training a set of people for a specific type of mission that is not the same mission as an area of armed conflict.

Sen. Dick Durbin (D-Ill):
I guess what I’m driving at is I’ve been to one of our bases where the drones are launched and I’ve seen the intelligence-gathering taking place. And when it is done according to the book – and that’s what I was told – it is a very painstaking, elaborate, lengthy evaluation of a site, a person, before the ultimate decision is made. And despite the tragic circumstances where innocent people are killed – and it has happened – every effort is made to avoid that to the extreme as it should be, as Americans would insist…And I guess the basic question is whether or not the intelligence capacity, which is so important in that process, is different or better between the CIA and the military? Do you have an opinion?

Gen. James Cartwright, United States Marine Corp (Ret.):
If it is not inside an area of hostility, it is in a country where we have not declared hostilities, then it is generally accepted that the Agency has better intelligence and better ability to gather intelligence than the military does. Now, that’s under the current rules about who does what, where.

Sen. Dick Durbin (D-Ill):
Thank you. Mr. Bergen, one of the things that your New America Foundation has been involved in is some public opinion research about the impact of the drone strikes in Pakistan and Yemen. Could you tell me what you’ve found?

Peter Bergen, Director of National Security Studies Program, New America Foundation:
We did an independent poll in the Pakistan’s tribal areas where all these drone strikes happen and we found overwhelming opposition to the drone strikes.

…We asked the question “If the Pakistani military was involved, would your opposition change?” And the opposition goes down quite a lot if the Pakistani military was more involved. So it’s an issue of national sovereignty.

We also found overwhelming opposition to Al Qaeda and the Taliban and we ask the question if Al Qaeda or the Taliban were on the ballot, would you vote for them in an election? The answer was only barely 1% would.

So there hasn’t been to my knowledge really good polling in Yemen on this issue. Certainly, there’s some public discontent, but there’s nothing as far as I can tell anything on the scale of what it is in Pakistan, where it is really more about, in my view, the sovereignty issues than the civilian casualty issues. After all, their parliament in April voted to basically stop this. And so you’ve got this very kind of confusing situation where the parliament has voted against this yet it still proceeds and they have F-16s which could theoretically shoot these drones down but don’t. So there is some sort of passive or tacit consent.

Sen. Dick Durbin (D-Ill):
That is exactly the point that I want to go to with Professor Brooks…What I find different here is this definition of battlefield. I knew what we were voting for in 2001 when it came to Afghanistan. We were headed there. That’s where Al Qaeda was. And they had just attacked the United States and we were going to answer that attack. I didn’t realize – as I said and I don’t think many members did – that we would be having this conversation 12 years later about Yemen, Somalia, even Pakistan…So it appears now that we at least have to have tacit, passive, if not active, approval before we’re using these aircraft – these unmanned aerial aircraft – before we engage the enemy. I take it the enemy is in a lot other places that we’re not pursuing them. So how does this work into the definition of battlefield in the Authorization for the Use of Military Force?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Not very comfortably, frankly. And that’s why I’ve emphasized that the deep problem is that we’ve got two legal paradigms that just don’t fit the challenges we’re faced with right now.

And maybe to illustrate, you may remember Senator, in 1976 Orlando Letelier, the former Chilean Defense Minister who had been ousted in a military coup in Chile, imprisoned and tortured, ultimately came to the United States and was outspoken against the Chilean military dictatorship. The Chilean military decided in the context of an ongoing insurgency in Chile that they didn’t like that very much and so Chilean intelligence operatives planted a car bomb in his car here in Washington, D.C., killing him and American citizen assistant, Ronni Moffitt. Our government at the time called that murder, called that extrajudicial homicide.

My concern right now is that we have – because of the gap between these two legal paradigms and the extreme secrecy and lack of transparency in which these decisions take place, right now, if we could imagine that if those circumstances occur today, I would assume that the Chilean military government were it still existent would be saying to the United States, “What is your objection? He is an enemy of the Chilean state. You were unwilling or unable to do anything about it. We asked you. You harbored him. And so we had to take matters into our own hands.” And if we said, “Well, we question your assessment that he was a combatant or that there is an armed conflict.” They would reasonably reply, “That’s our decision to make and we don’t have to tell you the basis on which we made it or anything else.”

My concern – my broad rule of law concern here is that we’ve essentially handed a playbook for abuse to oppressive governments around the world. We need to develop some middle ground that acknowledges that we’re in a situation that is war-like in many ways but crime-like in other ways, and I think we can do that. I think that’s just a question of creativity.

One final comment, if I may, it really goes to the strategic issue. When it comes to the strategic costs, the benefits of this policy, unfortunately perceptions matter as much as reality. So while I very much agree with my colleagues that drones do not present novel legal issues, the reality is, as my colleagues have also suggested, the blowback is real. And when we’re taking into account the strategic costs, I think that’s something unfortunately we have to consider just as much as the legal issues.

Ilya Somin, Professor of Law at George Mason University School of Law:
Just briefly on this issue. The AUMF as written does not actually contain a geographic limitation. Rather, the limitation is based on the nations, organizations, or persons that the President determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11. So it’s not, I think, limited to Afghanistan or any other particular nation. It allows the President to attack these groups or individuals wherever they might be located. But as I said earlier, there is an important distinction between nations where the government either supports these groups or is unwilling or unable to do anything about them and nations where there is some reasonable rule of law. I think both legally and from a policy perspective, different measures are appropriate and obviously I entirely second what others have said that there might be cases where it is legally or even morally appropriate to use lethal force, we might not want to do so out of policy consideration whether blowback or other types of concerns.

But the AUMF as such does not have a geographic constraint.

Sen. Dick Durbin (D-Ill):
I think many of us view that in terms of hot pursuit as opposed to a 12-year effort in far-flung places where Al Qaeda’s progeny would somehow appear. It was a little different time and place after 9/11 and now we’re looking back at it from a different perspective.